on the defendant taking out a summons to set it aside, he informed the defendant that the judgment was withdrawn, the court held that the defendant had no right to get an order drawn up for setting aside the judgment with costs; and therefore that he was liable to pay the expense of it. And where a judgment was set aside for irregularity, on a summons before a judge at chambers, and no order was made as to costs, the court refused to order the payment of costs of setting aside the judgment, and discharged a rule obtained for that purpose, with costs. It is not usual for the judges to give costs at chambers, on the discharge of a summons: but where an action of debt having been settled, a summons was afterwards taken out by the defendant, to set aside the proceedings on the ground of irregularity, which was dismissed, a rule was granted to shew cause, why the costs of attending to set aside the summons should not be paid c. The court of Common Pleas, in a late cased, set aside a judge's order for better particulars of set off, on the ground that the plaintiff's attorney's clerk had, without authority, altered the date of the jurat of the affidavit on which the order had been obtained: Also, upon setting aside an irregular judgment of non pros, they imposed the condition of payment of costs by the plaintiff's attorney, on the ground that his clerk had, without authority, although without any sinister motive, inserted the word peremptory in the judge's summons for an attendance at his chambers on the subjectd; and the practice of such unauthorized interpolations of the acts of the court was severely censured d. absolute, or conditional. The order of a judge is absolute, or conditional on payment of costs, &c. But though a judge at chambers may make an order for Judge's order staying the proceedings on payment of debt and costs, he cannot order payment by instalments; nor give the defendant more time, than he would have had by lawf. The order of a judge for time, or further time to plead, and other serviceable orders, whether by consent or other- Must be drawn wise, should be regularly drawn up and served: it being a rule, in up, and served. the King's Bench, that "no summons for further time to plead, reply, or rejoin, or summons for further particulars of the plain 39, 40. Turner v. Gill, 3 Dowl. Rep. 30. f Kirby v. Ellier (or Ellison), 4 Tyr. & R. H. 59 Geo. III. K. B.; and see Sedgewick v. Allerton, 7 East, 542. 1 Chit. R. 647. (a.) Charge v. Farhall, 4 Barn. & C. 865. 7 Dowl. & R. 422. S. C. Anon. 4 Leg. Obs. 124. per Taunton, J. If acquiesced under, valid. When final. tiff's demand, defendant's set off, or other particular, be granted, in any action depending in that court, unless the last previous order for time, further time, or particulars respectively, be first drawn up, and such order produced at the time of applying for any such summons." And, in the Common Pleas, a consent indorsed on a judge's summons, is not binding on either party, unless the order be drawn up and served pursuant thereto a. In that court also, if a summons be taken out for time to plead, and the defendant's attorney do not attend, the plaintiff must get the summons discharged, before he can sign judgment b; but it is said to be otherwise in the King's Bench . Where, upon a summons attended at a judge's chambers, the judge indorses a minute of an order, it is at the option of the party by whom the summons was taken out, to have an order drawn up in pursuance of such minute, or not d. If he do not draw it up, and the party summoned considers that the order pronounced is in his favour, he should take out a cross summons, for the purpose of obtaining a similar order d. And if parties, being before a judge at chambers, go by consent into matter not within the summons, and the judge make a minute of an order, the party in whose favour such minute is made, is, it seems, entitled to draw up an order accordingly d. A recital of facts in a judge's order is not evidence of them, so as to admit the truth of the facts, on a demurrer to a pleading, in which the order is set out®. If the order of a judge be acquiesced under, it is as valid as any act of the court: and, in the King's Bench, a judge's order for a prisoner's discharge under the Lords' act, made out of term, has been held to be finals. So, the decision of a judge of assize, in remanding a prisoner under that act is final, up to the time of remanding h: The decision of a judge at chambers, as to amendments of pleadings, within the limits of his discretionary power over such amendments, will not be interfered with by the court. b Rivers v. Plumlee, Barnes, 240. Imp. C. P. 7 Ed. 233.; and see d Macdougall v. Nicholls, 5 Nev. & M. e M'Cormick (or M‘Cornish) v. Melton, 5 Tyr. Rep. 147. 1 Cromp. M. & R. 525. 3 Dowl. Rep. 215. S. C. Per Ld. Mansfield, Ch. J. in Rer v. And the court in banc Wilkes, 4 Bur. 2569. Wood v. Plant, 1 Taunt. 47; and see Wentworth v. Bullen, 9 Barn. & C. 840. 849, &c. Lench v. Pargiter, Doug. 68. Webster v. Wilkinson, H. 26 Geo. III. K. B. Jameson v. Raper, 3 Moore, 65 (a.); and see Tidd Prac. Ed. 382. 511. h Briggs v. Sharp, 6 Bing. 517. 4 Moore & P. 269. S. C. i Rex v. Archbishop of York, 3 Nev. & M. 453. 1 Ad. & E. 394. S. C.; and see Atkinson v. Bayntun, 1 Bing. N. R. 740. 1 Hodges, 144, S. C. have, it seems, no right to revise the opinion of a judge at nisi prius, in directing amendments of the record, under Lord Tenterden's act, 9 Geo. IV. c. 15 a; or refusing them, under the law amendment act, 3 & 4 W. IV. c. 42. § 23 b. But the court has power, in an action brought by executors, to review a judge's order, granting a discontinuance without costs c. of court. The mode of enforcing the performance of a judge's order is by Mode of enforcattachment: And where an attorney is in contempt, by disobeying a ing. rule of court, founded on a judge's order, the proper course of proceeding against him is by moving for an attachment; and not by applying to strike him off the roll. But a conditional order, for payment of costs, cannot be enforced by attachment, although the step to be allowed on payment of costs has been taken, without such payment: If, indeed, it become necessary to enforce a judge's order by attach- Making it a rule ment, or other act of the court, there must be a previous motion to make it a rule of court. The rule for this purpose is absolute in the first instance; and an absolute rule may be drawn up during term, on an order of a judge dated in vacationh: And where, from the misconduct of an arbitrator, the original order cannot be obtained, a duplicate may be made a rule of court'. But where a judge's order is obtained in vacation, it cannot be made a rule of court till the following term. A judge's order, however, for returning a writ, may be made a rule of court1: and, in the King's Bench1, and Exchequerm, an attachment for disobedience thereto may be obtained on one b Doe d. Poole, v. Errington, 3 Nev. & M. 646. 651. per Littledale, J.; and see 3 Chit. Gen. Pr. 44. Ante, 24, 5. Lakin v. Massie, 4 Dowl. Rep. 239. 1 Gale, 270. 11 Leg. Obs. 119. S. C.; but see Maddox (or Maddocks) v. Phillips, 1 Har. & W. 251. 5 Nev. & M. 370. 3 Ad. & E. 198. S. C. contra. Ex parte Townley, 3 Dowl. Rep. 39. 9 Leg. Obs. 221. S. C. e Rese (or Rex) v. Fenn, 2 Dowl. Rep. 182. 6 Leg. Obs. 414. S. C.; and see Turner v. Gill, 3 Dowl. Rep. 30. 9 Leg. Obs. 221. S. C. f Per Ld. Mansfield, Ch. J. in Rex v. Wilkes, 4 Bur. 2569. per Ld. Kenyon, Ch. J. in Curtis v. Taylor, E. 35 Geo. III. K. B. Hinchliffe v. Jones, 4 Dowl. Rep. 86. 1 Har. & W. 337. S. C. Wilson v. Northop, 2 Cromp. M. & h Swaine v. Stone, 4 Moore & S. 584. * Rex v. Price, 2 Cromp. & M. 212. 4 Tyr. Rep. 60. 2 Dowl. Rep. 233. 7 Leg. Obs. 333, 4. S. C. 1 Hinchliffe (or Hunchliffe) v. Jones, 4 Dowl. Rep. 86. 1 Har. & W. 337. 10 Leg. Obs. 475. S. C.; but see Stainland v. Ogle, 3 Dowl. Rep. 99. Frost v. Green, 10 Leg. Obs. 61. per Littledale, J. contra. Ante, 171. m Howell v. Bulteel, 2 Cromp. & M. 339. 3 Dowl. Rep. 99. (a.) Kensit v. Bulteel, 4 Tyr. Rep. 59. S. C. Forster v. Kirkwall, 4 Dowl. Rep. 370. 11 Leg. Obs. 471. S. C. How impeached. motion: but the practice is otherwise in the Common Pleas a; and, in the King's Bench, it seems to be necessary that there should be a separate rule for each b. An order of nisi prius, cannot be amended by the court in banc, until it has been made a rule of court. The order obtained on a summons is, however, subject to an appeal; and the validity of it may be impeached in two ways; either by moving the court to set it aside, or, if made in vacation, by applying, in the next term, to set aside the proceedings that have been had under it. The parties applying to the court to set aside an order made by a judge at chambers, may use the same affidavits as were before such judge, when he made the order. And on moving to set it aside, an affidavit stating the substance of the order is, it seems, sufficient. The application, however, for setting aside a judge's order should be made early, so as to prevent the parties from incurring unnecessary expense h: and where it had been deferred from the month of October till January following, it was holden to be too late. So, after an order of a judge at chambers has been made a rule of court, it is too late to object, in answer to a rule calling upon the party to pay money in pursuance of such order, that the judge had no power to make it. But an application to set aside a judge's order should be made to the full court1: and such an application, made on the first day of term, to set aside the order, on the ground of the irregularity of the affidavit on which the defendant was held to bail, and to set aside a writ of detainer lodged at the gaol, being eight days after it was so lodged, was holden to be in time. In order to rescind a judge's order, it does not seem to be necessary to make it a rule of court m; and no costs are allowed on rescinding it". a Pilcher (or Pitcher) v. Woods, 4 Dowl. Rep. 329. 11 Leg. Obs. 310. S. C. Hinchliffe (or Hunchliffe) v. Jones, 4 Dowl. Rep. 86. 1 Har. & W. 337. 10 Leg. Obs. 475. S. C. Cranch v. Tregoning, 13 Leg. Obs. d James v. Kirk, 1 Chit. R. 246. Pew- f Pickford v. Ewington, 1 Tyr. & G. 29. CHAP. XX. Of SETTING ASIDE, and STAYING PROCEEDINGS; and of PROCEEDINGS on the INTERpLeader Act. IN the present Chapter it is intended to state the general rules of How treated of. court, and recent decisions, on motions or applications to set aside proceedings for irregularity; and to stay them, when the action is brought without proper authority, against bail pending error, or until security be given for the payment of costs; and to notice such of the proceedings on the interpleader acta, as relate to the property in money or goods, where claims are made by different parties, one of whom what. has brought an action against the person in possession of them, and the defendant does not claim any interest therein. An irregularity is defined to be the want of adherence to some Irregularity, prescribed rule or mode of proceeding; and it consists, either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or improper manner: and, in general, it is either in mesne process, or the proceedings thereon before judgment, or in the judgment or execution b. The distinction between void and irregular process, and the time and mode of setting it aside when irregular, having been treated of in a former chapter, it may here be proper to notice what relates to irregularity in subsequent proceedings. The application to set aside proceedings for irregularity should be made as early as possible, or, as it is commonly said, in the first instance for when there has been any irregularity, if the opposite party overlook it, and take subsequent steps in the cause, he cannot afterwards revert back, and object to ite. And accordingly, by a * 1 & 2 W. IV. c. 58. § 1. b Tidd Prac. 9 Ed. 512. Chap. VIII. p. 104, &c. Petrie v. White, 3 Durnf. & E. 7. D'Argent v. Vivant, 1 East, 335. Steele v. Morgan, 8 Dowl. & R. 450. Warren v. Cross, 9 Price, 637. e See cases referred to in Tidd Prac. 9 Ed. 513. (e.) and the following cases since In mesne process, or sub sequent proceed. ings. Application to set aside proceedings for irregularity, when made. By R. H. 2 W. |